Caroline Walker has written this comment for the Harvard Law Review on the Eighth Circuit’s decision that no private right of action exists to enforce Section 2 of the Voting Rights Act. The comment explores whether plaintiffs might be able to use Section 1983 to enforce Section 2 instead.

Section 1983 enables private parties to enforce a federal statute that creates an individual right, even if the statute itself does not contain a private cause of action. An individual right is enforceable under § 1983 when (1) plaintiffs show that the statute’s text and structure reflect congressional intent to create an individual right and (2) the opposing party fails to show that the statute reflects congressional intent to foreclose § 1983 enforcement of that right. . . .

Under the Supreme Court’s guidance, section 2’s text creates an individual right. Section 2 protects against any “voting qualification . . . standard, practice, or procedure . . . result[ing] in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.” This provision contains “rights-creating” language with an “unmistakable focus on the benefited class” of citizens who hold the equal right to vote. That individual right does not disappear when the statute also “establish[es] who it is that must respect and honor the[] statutory right[].” . . .

Turning to the second prong of the § 1983 analysis, defendants are unlikely to rebut the presumption that section 2 voting rights are enforceable under § 1983. The presumption is rebutted only when “Congress ‘specifically foreclosed a remedy under § 1983.’” Specific foreclosure occurs only when the statute precludes § 1983 enforcement either explicitly or implicitly through “a ‘comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.’” Explicit foreclosure does not pose an issue here, because “[a]ny mention of . . . private remedies . . . is missing” from the VRA’s text, as the Eighth Circuit recognized. . . .

Section 1983 ensures that private individuals and groups can bring a cause of action to enforce their section 2 voting rights in the absence of any Attorney General action. Plaintiffs pleading § 1983 claims to enforce section 2 need only prove the same merits of a vote dilution or denial claim brought under section 2 itself. Section 1983 provides a viable mechanism for plaintiffs and advocates to continue fighting before the courts to protect equal voting rights against antidemocratic attacks.

Many (most?) racial gerrymandering cases have partisan as well as race-related objectives. Why did the plaintiffs sue in Alexander, the South Carolina case decided by the Court today? At least in part to try to get a second Democratic congressional district in the state. Similarly, what explains the Louisiana racial gerrymandering case whose ruling the Court stayed just last week? Again, at least partly, the (Republican) plaintiffs’ desire to stop the state from using a map with two Democratic districts.

In today’s decision in Alexander, the Court made it much more difficult for racial gerrymandering plaintiffs to achieve any partisan goals they might have. This is because the Court came close to requiring plaintiffs to submit an alternative map showing how the state could maintain its plan’s current partisan balance while fixing the alleged racial gerrymandering. The Court discounted the thousands of maps created by the plaintiffs’ experts because none of them “achieved the legislature’s partisan goal”—a Republican District 1—“while including a higher [Black voting-age population] in District 1.” The Court also held that, in the future, “trial courts should draw an adverse inference from a plaintiff’s failure to submit” an alternative map. “A plaintiff’s failure to submit an alternative map should be interpreted . . . as an implicit concession that the plaintiff cannot draw a map that undermines the legislature’s defense that the districting lines were” drawn for partisan, not racial, reasons.

After today’s decision, potential litigants with partisan aims will have much less reason to bring racial gerrymandering claims. The alternative map they’re now (essentially) required to produce is an instruction manual for the state explaining how it can remedy the violation alleged by the plaintiffs without disturbing its plan’s partisan performance. Why should partisan litigants bother suing when, to avoid a likely fatal “adverse inference” against them, they have to demonstrate to the state how to avoid any partisan consequences as a result of the suit?

Importantly, today’s decision similarly constrains Democratic and Republican litigants. I mentioned above that Alexander may have been brought, in part, to obtain another Democratic district, while Republican gain was a likely motive for the ongoing Louisiana case. A look at the whole universe of racial gerrymandering cases confirms that both parties see them, at least partly, as vehicles for pursuing partisan advantage. In the 1990s, the original cases of this kind were almost uniformly brought by white Republican plaintiffs angry about plans that simultaneously benefited Democrats and increased minority representation. In the 2010s, minority Democratic plaintiffs challenged aggressive Republican gerrymanders that used race in ham-handed, legally indefensible, ways to comply with the Voting Rights Act. This cycle, beyond the South Carolina and Louisiana cases, there have been prominent racial gerrymandering suits seeking (in part) more Democratic districts in Alabama and Texas and (also in part) more Republican districts in Michigan and Wisconsin.

What’s the problem, then, with a decision that focuses racial gerrymandering cases on racial, not partisan, grievances? The problem, in a word, is Rucho. While the Court held that partisan gerrymandering is nonjusticiable in Rucho, severe partisan gerrymandering remains unconstitutional—even according to Rucho—and staggeringly undemocratic. So it’s understandable that parties victimized by partisan gerrymandering want to go to court to correct this profound constitutional and democratic injury. However, Rucho prevents parties from directly asserting this harm, at least in federal court. And today’s decision more or less stops parties from trying to attack partisan gerrymanders indirectly through racial gerrymandering claims. After Alexander, parties increasingly have nowhere to turn when they’re targeted by conduct that almost everyone agrees is unlawful and undemocratic.

To be clear, the pre-Alexander situation of racial gerrymandering claims sometimes being repurposed to fight partisan gerrymandering was far from ideal. The right answer would be for courts to recognize racial and partisan gerrymandering claims, thereby allowing racial gerrymandering claims to root out race-related abuses. But Alexander moves us from a second-best to a third-best world: one where partisan gerrymandering can’t be tackled directly or indirectly, and simply becomes invisible as a matter of federal constitutional law.

Politico.

Native Americans are always an important voting bloc in Montana, where they make up 6.5 percent of the population, per U.S. Census data. But this November, their involvement could potentially impact the entire nation.

Control of the Senate may hang on the outcome of the Montana Senate race, where Democratic Sen. Jon Tester is up for reelection in this reliably red state, likely facing off against Republican Tim Sheehy, whom former President Donald Trump has endorsed. Trump won Montana by nearly 17 percentage points in 2020, and Tester won by 3.5 percentage points — or nearly 18,000 votes — in 2018. Montana’s tribes comprise about five percent of the voting bloc, nearly twice the margin by which Tester won his last race.

Native voters are “hugely important to the Democratic base,” says Jim Messina, an Obama White House alum and former adviser to Tester with deep political roots in Montana. Tester ousted Republican Sen. Conrad Burns in 2006 in part by siphoning off some of Burns’ support among Native Americans. “Tester was able to cut into that bloc and really move them towards him,” Messina says.

NYT.

Less than six months out from the presidential contest, leading Republicans, including several of Donald J. Trump’s potential running mates, have refused to commit to accepting the results of the election, signaling that the party may again challenge the outcome if its candidate loses.

In a series of recent interviews, Republican officials and candidates have dodged the question, responded with nonanswers or offered clear falsehoods rather than commit to a notion that was once so uncontroversial that it was rarely discussed before an election.

The evasive answers show how the former president’s refusal to concede his defeat after the 2020 election has ruptured a tenet of American democracy — that candidates are bound by the outcome. Mr. Trump’s fellow Republicans are now emulating his hedging well in advance of any voting.

Reuters.

Meta’s oversight board upheld a decision to remove two Facebook posts calling for Australians to vote multiple times in an indigenous rights referendum, but noted the social media giant had not adequately explained its ban on encouraging voter fraud.

The board, which is funded by Meta (META.O), opens new tab but run independently, said Meta was correct to protect the democratic process by preventing voter fraud when it proactively pulled the posts ahead of the 2023 vote. . . .

The decision comes as Australia’s government plans to introduce penalties for internet platforms which fail to rein in misinformation and disinformation. Last October, Australians voted down a proposal to constitutionally recognise Aboriginal and Torres Strait Island people amid fears that a misinformation campaign was influencing voters.

Nevada Independent. It’s disappointing to see Nevada Democrats fighting to preserve gerrymandering, especially at the state legislative level where there’s no unilateral disarmament rationale for the status quo.

The Nevada Supreme Court on Friday unanimously affirmed a district court ruling that two proposed ballot questions each seeking to establish an independent redistricting commission are legally deficient.

The order found that the measures — identical save for when they would go into effect — were invalid because they would create a new state body (an independent redistricting commission) without establishing a revenue source to pay for it. Each sought to establish an independent, seven-member commission to draw congressional and legislative district maps, thereby removing state lawmakers’ role in the redistricting process. . . .

If supporters refile the ballot initiative, Cosgrove said they’d need to include a revenue source  such as increasing the marijuana tax. However, she said that would likely violate the single-subject rule that ballot petitions are limited to, opening it to a legal challenge or leading to a court battle about how much money was needed to fund the petition. 

The Arizona grand jury that recently indicted 18 people for their roles in former President Donald Trump’s scheme to subvert the 2020 election cast a far wider net than state prosecutors had publicly foreshadowed.

The panel of 16 Arizonans displayed unusual independence from the prosecutors supervising the investigation, according to a rare inside look at the secret proceedings based on interviews with eight people familiar with the probe and documents signed by a top prosecutor.

The grand jury took aggressive steps to haul in witnesses and even brought charges against some who had been told by prosecutors they were not under investigation. It ultimately produced a 58-page indictment last month that charged national and state Republicans — including one of Trump’s current top advisers and several former members of his inner circle — with felonies for their alleged roles in the effort to overturn Joe Biden’s victory in the state. Trump himself was listed as an unindicted co-conspirator.

Politico.

Eighty-four Republicans in seven states falsely claimed to be Donald Trump’s presidential electors in December 2020. Three and a half years later, dozens of them are facing criminal charges that could land them in prison for years.

Dozens of others have not been charged at all.

Even though the fake electors all participated in the same scheme, some have been charged as dangerous criminals while others have been treated as mere dupes. These disparities depend almost entirely on where they live.

In Arizona, Michigan and Nevada, every fake elector is facing felony charges except one, whose charges were dropped in a cooperation deal. Their counterparts in New Mexico, Pennsylvania and Wisconsin aren’t facing any charges. And in Georgia, three fake electors have been charged alongside Donald Trump, while others struck immunity deals.

Washington Post. It’s rare to see candidates being this overt about what they’ll do if they get campaign contributions. Incidents like this should be part of the record justifying any future campaign finance regulation.

Trump’s response stunned several of the executives in the room overlooking the ocean: You all are wealthy enough, he said, that you should raise $1 billion to return me to the White House. At the dinner, he vowed to immediately reverse dozens of President Biden’s environmental rules and policies and stop new ones from being enacted, according to people with knowledge of the meeting, who spoke on the condition of anonymity to describe a private conversation.

Giving $1 billion would be a “deal,” Trump said, because of the taxation and regulation they would avoid thanks to him, according to the people. . . .

Trump vowed at the dinner to immediately end the Biden administration’s freeze on permits for new liquefied natural gas (LNG) exports — a top priority for the executives, according to three people present. “You’ll get it on the first day,” Trump said, according to the recollection of an attendee. . . .

Trump told the executives that he would start auctioning off more leases for oil drilling in the Gulf of Mexico, a priority that several of the executives raised. He railed against wind power, as The Post previously reported. And he said he would reverse the restrictions on drilling in the Alaskan Arctic. . . .

At the dinner,Trump also promised that he would scrap Biden’s “mandate” on electric vehicles — mischaracterizing ambitious rules that the Environmental Protection Agency recently finalized, according to people who attended. . . .

Despite Trump’s huge fundraising ask, oil donors and their allies have yet to donate hundreds of millions to his campaign. They havecontributed more than $6.4 million to Trump’s joint fundraising committee in the first three months of this year, according to an analysis by the advocacy group Climate Power. Oil billionaire Harold Hamm and others are scheduling a fundraiser for Trump later this year, advisers said, where they expect large checks to flow to his bid to return to office.

Times Union:

New Yorkers’ right to vote early by mail was upheld in a unanimous appellate court decision Thursday, further cementing the option of no-excuse absentee voting in the upcoming presidential election.

The ruling also serves as a blow to U.S. Rep. Elise Stefanik and New York Republicans who brought the case against Gov. Kathy Hochul and the state Board of Elections. A state Supreme Court justice in Albany previously sided with the state in maintaining the law. . . .

Stefanik said she expects to have the case reviewed by the Court of Appeals. 

Miami Herald:

Miami commissioners are not yet ready to accept a new voting map as part of a settlement in a racial gerrymandering lawsuit, expressing concerns that the proposed map wouldn’t guarantee diversity of elected officials, adding further delay to contentious legal battle.

In a 4-0 vote, the Miami City Commission on Thursday deferred a vote on the settlement to the May 23 meeting, with some members saying it was too important of a decision to make without the presence of Commissioner Damian Pardo, who is out of the country for a previously planned engagement. . . .

The new map had been agreed upon by both sides as part of a proposed settlement in a federal lawsuit against the city filed by voting rights activists represented by the American Civil Liberties Union. The settlement required City Commission approval.

Last month, U.S. District Judge K. Michael Moore ruled in the case that Miami’s voting map was racially gerrymandered and ordered the city to toss it out. Before the ruling, commissioners had openly stated that the voting map was drawn to ensure the five-member commission comprised three Hispanic, one white and one Black commissioner to guarantee racial diversity of the board’s membership — a policy that Moore said violated the 14th Amendment of the U.S. Constitution.

A Miami Herald analysis of the proposed new map showed it would lead to only minor changes to the racial makeup of the city’s five voting districts, maintaining Hispanic supermajorities in Districts 1, 3 and 4, and a Black majority in District 5.

AP:

At issue is a ruling by a federal panel over a lawsuit filed by Republicans challenging the constitutionality of a redistricting map that created House subdistricts encompassing two American Indian reservations. Proponents of the subdistricts said they gave tribal nations better chances to elect their own members. Last fall, a federal three-judge panel tossed out the lawsuit at the request of the state and the Mandan, Hidatsa and Arikara Nation. The judges wrote that “assuming without deciding” that race was the main factor for the subdistricts, “the State had good reasons and strong evidence to believe the subdistricts were required by the VRA.”

The plaintiffs appealed.

North Dakota Attorney General Drew Wrigley said the three-judge panel decided the matter correctly under existing case law — but for the wrong reason. The state argues in a filing made Monday that it “cannot defend this Court’s ‘assumption’ that attempted compliance with the VRA (or any statute) would justify racial discrimination in violation of the Fourteenth Amendment.”

“We’re not seeking to reverse” the panel’s decision, Wrigley said. “We’re seeking to have it upheld but for the reason that race was not the predominant factor, and we think that we should prevail.”

But critics bashed the move as a questionable legal maneuver as well as an attempt to assault the Voting Rights Act.

Washington Post:

House Speaker Mike Johnson warned at the Capitol this week that non-U.S. citizens voting in the November elections is a “clear and present danger,” proposing federal legislation to stop it. Tennessee’s GOP governor recently signed legislation requiring the state to scrutinize its voter rolls for noncitizens. And in four other states, Republicans have helped put measures on the ballot this fall to make sure the only people who vote in elections are American citizens.

But experts say the Republican spotlight on the issue glosses over two crucial facts: Noncitizen voting is exceedingly rare, and it is already banned in almost all places, including the ones with ballot measures in November.

That hasn’t stopped Republicans from making the issue a frequent talking point. The unfounded threat brings together two issues Republicans believe will drive turnout with their base: illegal immigration and election fraud claims.

Critics warn that attempts to crack down on noncitizen voting could suppress the votes of Latino voters who fear being wrongly accused of illegally casting ballots. They say they could also lead to database mismatches that push legitimate voters off the rolls.

“A Real Discussion about Election Integrity”

Friday, May 31, 2024
10 a.m. PST / 1 p.m. EST

Register: https://www.tipaz.org/events-1/8fya47748yk8gpbe8g85z954dc4kxm-tgpb8

It’s time to get real! With the November 2024 Election looming on the horizon and debate by many over the integrity of our voting system – including voter registration misinformation, questions over the reliability of tabulation equipment, delays in reporting, the quality of early voting, false claims about the 2020 Election and more – The Integrity Project is please to present this special conversation by a panel of experts with decades of experience.

The event is co-hosted by the University of Wisconsin’s Elections Research Center.  

Dr. Barry Burden (Moderator) is Professor of Political Science and Director of the Elections Research Center at the University of Wisconsin at Madison.

Dr. Nate Persily is the James B. McClatchy Professor of Law at Stanford Law School and former editor of the Stanford Law Review.

Sec. Kim Wyman is the 15th Secretary of State for the State of Washington, serving from 2013-2021, and currently serves as Senior Fellow at the Bipartisan Policy Center.

Sec. Trey Grayson is the 83rd Secretary of State for the State of Kentucky (2004-2011) and is currently Managing Director of Frost Brown Todd’s subsidiary, CivicPoint. 

Tammy Patrick is CEO for Programs at the National Association of Elections Officials, and a former Commissioner to President Obama’s Presidential Commission on Election Administration.